Blame-the-Victim-Until-He-Apologizes Department

Tom Raftery thought he had a significant problem:

Tom Raftery: IT@Cork is a not-for-profit networking organisation for IT professionals. IT@Cork organises regular information and networking events which are free for its members. One of these events - the upcoming Web 2.0 half-day conference is the target of a cease and desist letter (below) from the legal team of O'Reilly publishers. Basically O'Reilly are claiming to have applied for a trademark for the term "Web 2.0" and therefore IT@Cork can't use the term for its conference. Apparantly use of the term "Web 2.0" is a "flagrant violation" of their trademark rights! Ironically I invited Tim O'Reilly to speak at this conference last February and his response (which I received on 15th of February) was

I would love to be able to do it, but my schedule is just too full for an additional international trip.

So Tim was aware of the event in February but decided to wait until 2 weeks before the conference to set the lawyers on us. As I mentioned, IT@Cork is a not-for-profit organisation and doesn't have the resources available to O'Reilly - what do people suggest we do?

[The cease-and-desist letter:]

By facsimile and overnight courier...

Re: Trademark Infringement...

I am counsel to CMP Media LLC (:CMP"). Working with O'Reilly Media, Inc.... Your use of the Web 2.0 mark without our authorization or consent directly violates our exclusive rights. Selecting this title can only be viewed as a deliberate attempt to trade off the good will of CMP and cause confusion in the market. Your mis-use, ironically, is exacerbated by your promotional statement "What is Web 2.0? Read what O'Reilly has to say here." That link is to an article by Tim O'Reilly, "What is Web 2.0", that expressly states, "The concept of Web 2.0 began with a conference brainstorming session between O'Reilly and MediaLive International (the predecessor-in-interest to CMP)." Moreover, such actions constitute unfair trade practices, unfair competition, and are a fragrant violation of CMP's trademark rights.

CMP hereby demands that you immediately cease and desist from utilizing Web 2.0 as the title of your event and from making any further use of our mark, or any mark that is confusingly similar to it. CMP further demands that you provide us with written assurance within ten days that you have cased to use such conference title and that you will refrain from utilizing any CMP marks in the future.

Now Tim O'Reilly writes that Tom Raftery owes him--Tim O'Reilly--an apology:

O'Reilly Radar > Web 2.0 Service Mark Controversy (Tim responding this time): The flap about the Web 2.0 Conference trademark has shaken my faith in the collective intelligence of the blogosphere.... While I admit that the cease-and-desist letter to IT@Cork was a faux pas, the blogosphere response... have been appalling.... Tom Raftery of IT@Cork must have noted the discrepancy between the friendly email from me that he quoted from and CMP's letter. In fact, the next line of my email, which Tom neglected to quote, was "Best of luck with your event."...

Given that Tom and I had previously had a conversation where I wished him the best of luck with his conference... I would have thought that he would have wondered whether the right hand knew what the left hand was doing before launching and then encouraging the torrent of net vitriol.... He did call CMP to talk to the lawyer who wrote the letter.... While he acknowledges that the letter was from CMP, he used O'Reilly's name in the headline and repeatedly throughout the piece for maximum net impact. So while we owe Tom an apology for heavy-handed tactics, I think Tom owes us an apology for the way he responded.

Now, I want to address the deeper issue that's been raised, about whether it's appropriate for anyone to hold a trademark on the term Web 2.0.... MediaLive filed for the trademark on the Web 2.0 Conference back in November 2003, when they first entered into the partnership agreement with O'Reilly on this conference.... O'Reilly also values its trademarks.... In most cases, though, especially with non-commercial users, we've usually found it sufficient to send an email asking the non-commercial user to protect our trademark by acknowledging our ownership of it.... I was not aware, however, that CMP intended to send out cease and desist letters to anyone in the short term, let alone to a non-profit organization with whom I'd previously corresponded about the event they were putting on. (Gina Blaber, the head of our conference team, was aware of the letter, however, and approved it)....

Neither CMP nor O'Reilly sued anyone, as has widely been misreported. A C&D letter is not a lawsuit. It is not even a threat of a lawsuit. It is... routine.... I still remember the alarm I felt the first time I received a cease-and-desist letter.... [W]hile CMP's letter may appear harsh to those who've never seen one, it is actually relatively mild compared to many such legal letters I've seen over the years...

What part of the difference between "please put an asterisk saying that Web 2.0 is a service mark of CMP and ORA" and "[Your] actions constitute unfair trade practices, unfair competition, and are a fragrant violation of CMP's trademark rights. CMP hereby demands that you immediately cease and desist from utilizing Web 2.0 as the title of your event..." does Tim O'Reilly not understand?

No. I don't think Tom Raftery owes Time O'Reilly any form of apology.